Borobudur Law and Society Journal

Indonesian law allows forfeiture of the proceeds and instruments of crime only after a criminal conviction, which fails when the offender dies or flees. The Draft Bill on Forfeiture of Criminal Assets, sent to Parliament by the President in May 2023 and again under discussion in 2026, adopts non-conviction based (NCB) forfeiture, a civil action against the asset itself. This normative legal study uses statutory, conceptual and comparative approaches to examine the legal construction of NCB forfeiture in the Bill, the practice of four comparator jurisdictions and the challenges of applying it in Indonesia. It finds that the Bill creates a civil procedure in which a state attorney applies to the district court, the civil standard of proof governs and third parties may object. The four systems differ on whether the action is civil or criminal and on how they allocate the burden of proof. The central difficulty is the shift of the burden onto the owner, which must be reconciled with the right to property and the presumption of innocence through a proportionality test. The study recommends that the Bill list the offences covered, require the state to show a reasoned link between asset and offence before the burden shifts, protect good-faith third parties and regulate asset management. The study rests on documents and does not assess practice.